Seanad Éireann

Vol. 238 Wednesday, No. 5 25 February 2015 DÍOSPÓIREACHTAÍ PARLAIMINTE PARLIAMENTARY DEBATES SEANAD ÉIREANN TUAIRISC OIFIGIÚIL—Neamhcheartaithe (OFFICIAL REPORT—Unrevised) Insert Date Here 25/02/2015A00100Business of Seanad 235 25/02/2015A00300Commencement Matters 236 25/02/2015A00350Periodic Payment Orders 236 25/02/2015B00500Home Repossession 238 25/02/2015C01050Special Educational Needs Staffing 241 25/02/2015D00700Nursing and Midwifery Board of Ireland 243 25/02/2015K00100Order of Business 246 25/02/2015T00100Workplace Relations Bill 2014: Committee Stage (Resumed) ��256 25/02/2015PP01600Health Services: Motion 313 SEANAD ÉIREANN Dé Céadaoin, 25 Feabhra 2015 Wednesday, 25 February 2015 Chuaigh an Cathaoirleach i gceannas ar 10.30 a.m. Machnamh agus Paidir. Reflection and Prayer. 25/02/2015A00100Business of Seanad 25/02/2015A00200An Cathaoirleach: I have received notice from Senator Colm Burke that, on the motion for the Commencement of the House today, he proposes to raise the following matter: The need for the Minister for Justice and Equality to clarify the current position on the introduction of legislation which will allow the courts to grant periodic payments to those who have suffered injury as a result of medical negligence. I have also received notice from Senator Thomas Byrne of the following matter: The need for the Minister for Justice and Equality to ensure repossession cases in the Circuit Court are heard by judges, not county registrars, and further discretion is given to judges. I have also received notice from Senator Martin Conway of the following matter: The need for the Minister for Education and Skills to comment on the prohibition on special needs assistants working while participating in the career break scheme where such prohibition prevents them from completing their probation period in order to fully qualify as resource or SNA teachers I have also received notice from Senator John Crown of the following matter: The need for the Minister for Health to urgently outline the contingency plan to prevent an effective shutdown of hospitals in the event of a mass un-registering of nurses by the Nursing and Midwifery Board of Ireland on 2 March. I have also received notice from Senator Trevor Ó Clochartaigh of the following matter: An gá atá ann go ndearbhóidh an tAire Ealaíon, Oidhreachta agus Gaeltachta go leanfar le maoiniú a sholáthar do Phléaráca Teoranta chun go mbeidh siad in ann leanúint den obair atá déanta ag an eagraíocht i gConamara le fiche bliain anuas. 235 Seanad Éireann I regard the matters raised by the Senators as suitable for discussion. I have selected the matters raised by Senators Colm Burke, Thomas Byrne, Martin Conway and John Crown and they will be taken now. Senator Trevor Ó Clochartaigh may give notice on another day of the matter he wishes to raise. 25/02/2015A00300Commencement Matters 25/02/2015A00350Periodic Payment Orders 25/02/2015A00400Senator Colm Burke: I welcome the Minister of State. I raise the issue of legislation re- lating to periodic payment orders in the context of a recent presentation made to the Oireachtas Joint Committee on Health and Children by a parent whose child was severely affected by medical negligence. It was clear at the time of the child’s birth that she had been badly affected by the manner of her delivery but it was nine years before any payment issued to the family. The parent spoke about the fact that the first three to four years of that child’s life were extremely important but that the family did not have access to funding to provide the best possible care for the child. I raise this matter in that context. In a recent case at the same hospital a settlement was reached at a far earlier stage - approxi- mately three years after the event. At least there was some satisfaction from the parents’ point of view then because they knew that moneys would be available to allow their child to access the kind of services needed at a very young age. This is a very important issue and we should introduce the appropriate legislation as soon as possible. 25/02/2015A00500Minister of State at the Department of Social Protection (Deputy Kevin Humphreys): The Minister for Justice and Equality, Deputy Frances Fitzgerald, regrets that she is unable to be present for this discussion. She would like to thank the Senator for raising this important issue which gives her Department the opportunity to outline the progress made in the introduction of periodic payment orders in cases of catastrophic injury. It is fair to say there has been much debate in recent years on the appropriateness and ac- curacy of lump sums awarded in cases of catastrophic injury. Assessing damages in such cases is difficult, given the uncertainties involved in making assumptions as to the person’s future circumstances as well as issues such as investment returns and inflation rates. The President of the High Court, Mr. Justice Nicholas Kearns, established a working group on medical negligence and periodic payments in February 2010. The group’s terms of reference included considering and reporting on whether certain categories of damages for catastrophic personal injuries can or should be awarded by way of periodic payments orders, PPOs, as opposed to once-off, lump- sum orders and to make recommendations and provide draft legislation, regulations and rules as may be necessary. In the course of its deliberations the working group extended its examination to all personal injuries, not just medical injuries. I am sure the Senator is aware that in many other jurisdictions catastrophic injuries cases are compensated by PPOs which avoid the possibility of over or under compensation, as such payments are tied to actual costs of treatment and actual duration of life This is not the case in Ireland where the lump sum approach to assessing damages in catastrophic injury cases has been the norm This approach has been criticised in that lump sum payments can lead to situa- 236 25 February 2015 tions where the lump sum is exhausted before the demise of the claimant. Alternatively, if the claimant dies unexpectedly, the remainder of the lump sum becomes, in effect, a windfall for his or her family It is the Minister’s belief that the introduction of an appropriate and effective scheme of PPOs will address the issues raised by the working group on medical negligence and periodic payments and will further the interests of justice. She is also of the view that a PPO scheme together with other legislative changes, such as the introduction of pre-action protocols for medical negligence, will have positive impacts on high medical insurance costs. It is vital that any such scheme ensure the continuity of payments to the plaintiff Where the State has such a liability, security of payment is not an issue. However, in the case of private defendants, usu- ally an insurance company, the matter is more complex. It will require the establishment of a financial infrastructure to ensure continuity of payment, while ensuring the State’s position under any such scheme is well protected. In 2013 the Government approved the drafting of the heads of a civil liability (amendment) Bill to implement the recommendations contained in the High Court working group report on periodic payments orders in personal injury cases with respect to awards made against the State and agreed that the extension of any such scheme to non-State defendants would be examined further in consultation with the Department of Finance. Subsequent to the Government’s deci- sion, the Department of Finance, through the State Claims Agency, commissioned an actuarial study of this issue. Following receipt of the study in April 2014, the Department of Justice and Equality established an interdepartmental working group to work through the technical aspects of the issue and devise the elements of the periodic payment scheme for the proposed legislation. In particular, the group examined the following issues: financial security mechanisms for PPOs for both State defendants and private defendants; the indexation of PPOs - the group examined the most appropriate indexation measure for inclusion in the legislation; variable or stepped PPOs; a variable PPO would allow parties to return to court to seek a variation of the order in certain circumstances, while a stepped PPO would include at the making of the order a number of stepped payments to cater for specific milestones in a claimant’s life; the extent to which decisions to award PPOs should be mandatory or at the discretion of the court; and the scope of a PPO scheme - whether it would, for example, include both State and non-State defendants. The group has completed its work and made a number of recommendations on these technical issues The Minister for Justice and Equality, in conjunction with her colleague, the Minister for Finance, is actively considering the optimum implementation mechanism to ensure the financial security of PPOs. The Minister has informed me that she expects to

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